Judicial Review of Refugee Determinations: The Luck of the Draw?

Transcription

1 Osgoode Hall Law School of York University Osgoode Digital Commons Comparative Research in Law & Political Economy Research Papers, Working Papers, Conference Papers Research Report No. 9/2012 Judicial Review of Refugee Determinations: The Luck of the Draw? Sean Rehaag Osgoode Hall Law School of York University, Follow this and additional works at: Recommended Citation Rehaag, Sean, "Judicial Review of Refugee Determinations: The Luck of the Draw?" (2012). Comparative Research in Law & Political Economy. Research Paper No. 9/ This Article is brought to you for free and open access by the Research Papers, Working Papers, Conference Papers at Osgoode Digital Commons. It has been accepted for inclusion in Comparative Research in Law & Political Economy by an authorized administrator of Osgoode Digital Commons.

2 !!! OSGOODE!HALL)LAW)SCHOOL! Comparative+Research+in+Law+&+Political+Economy+ ) RESEARCH)PAPER)SERIES)! Research!Paper!No. 9/2012! Judicial Review of Refugee Determinations: The! Luck of the Draw?! Sean Rehaag) ) ) Editors:) Peer)Zumbansen)(Osgoode)Hall)Law)School,)Toronto,)Director)Comparative)) Research)in)Law)and)Political)Economy)) John)W.)Cioffi)(University)of)California)at)Riverside)) Leeanne)Footman)(Osgoode)Hall)Law)School,)Toronto,)Production)Editor))!!!!!!!

3 Judicial Review of Refugee Determinations: The Luck of the Draw? Sean Rehaag* Judicial review is often the only way to correct errors made by the Immigration and Refugee Board in refugee determinations. Applicants must seek leave from the Federal Court, where a judge will decide if their case is suitable for judicial review. The stakes are high for refugee claimants confronting deportation to countries where they may face persecution, torture or death. The author reviews over applications for judicial review from 2005 to 2010, and finds troubling inconsistency in leave grant rates at the Federal Court. Over 36 per cent of judges deviated by more than 50 per cent from the average rate of granting leave, with twenty judges granting leave more than ten times as often as the judge with the lowest leave grant rate. This inconsistency continues at the judicial review stage. The author considers several external factors that could explain it, from the judge s political party of appointment to the impact of the Supreme Court of Canada s decision on standard of review in Dunsmuir. Ultimately, the author concludes that the outcome of a leave application hinges largely on which judge is assigned to decide the application, and that this poses an arbitrary barrier to access to justice for refugees. The author considers various solutions to this problem, from abolishing the leave requirement to requiring written reasons or a panel of judges. At a minimum, he suggests that the test for leave should be clarified, as the limited jurisprudence has provided insufficient guidance to judges. Forthcoming reforms to the refugee determination system, including the introduction of the Refugee Appeal Division, will in his view increase rather than diminish the importance of fair and consistent judicial review of refugee determinations. * Associate Professor, Osgoode Hall Law School. I am grateful for the painstaking research assistance provided by Umair Abdul, Simran Bakshi, Dette Bourchier, Monica Cop, Justin Dharamdial, Adrienne Lipsey, Anastasia Mandziuk, Ian McKellar, Alex Minkin, Jessica Lynne Morris, Nedko Petkov, Sharmin Rahman and Rathika Vasavithasan. I would like to thank Richard Haigh, Director of the Osgoode Public Interest Requirement at Osgoode Hall Law School, for helping to secure research assistants for this project. I would also like to acknowledge the generous financial assistance provided by York University through the SSHRC Small Grants Program. Finally, I have greatly benefited from feedback on prior versions of the study from several Federal Court judges who attended a presentation on 20 January 2012, and from attendees at the Canadian Association of Refugee Lawyers National Conference on 9 March Comments and suggestions from the anonymous peer reviewers were also much appreciated. Unless otherwise indicated, all references in this article are current to 27 June S Rehaag 1

4 Introduction I. Canada s Refugee Determination System and the Federal Court A. Refugee Decisions at the Immigration and Refugee Board B. Leave Decisions at the Federal Court C. Judicial Review Decisions at the Federal Court D. Appeals to the Federal Court of Appeal and the Supreme Court of Canada E. Subsequent Immigration Procedures II. Existing Empirical Studies A. Greene B. Gould, Sheppard and Wheeldon C. Butler D. Need for a Further Study III. The Present Study A. Methodology B. Overview of the Dataset C. Grant Rates for Leave Judges D. Grant Rates for Judicial Review Judges E. Judge Demographics F. Factors Accounting for Variability IV. Discussion A. Abolishing the Leave Requirement B. Reforming the Leave Requirement C. Clarifying the Test for Leave D. Implications of Announced Reforms to the Refugee Determination System Conclusion Appendix Introduction Refugee determinations are among the most important decisions Canadian administrative tribunals and courts are called upon to make. If errors in first-instance refugee determinations at the Immigration and Refugee Board (IRB) are not caught and corrected through judicial review, refugees may be deported to countries where they face persecution, torture or death. Refugee claimants who apply for judicial review should, therefore, be able to expect that the outcomes of their applications will hinge on the merits of the cases they put forward. Drawing on a database of over applications for judicial review involving refugee matters from 2005 to 2010 in the Federal Court, this study examines whether outcomes in these high-stakes applications turn on their merits or on which judge is assigned to decide the application. 2 (2012) 38:1 Queen s LJ

5 Unfortunately, as this article reveals, outcomes at the Federal Court over the past five years all too often come down to the luck of the draw. The article begins with an overview of Canada s existing refugee determination system, and the role of the Federal Court within that system. Then, after discussing the literature on Federal Court decision making in the refugee law context, it sets out the methodology and the findings of this study. Finally, the article concludes by offering a number of policy recommendations based on the findings of the study and in light of the major reforms to Canada s refugee determination system that are expected in the near future. I. Canada s Refugee Determination System and the Federal Court For readers unfamiliar with Canada s existing refugee determination process, this section places Federal Court refugee law decision making in context. It provides an overview of first-instance refugee determinations at the IRB, sets out the processes followed and tests applied in the Federal Court at both the application for leave and the judicial review stages, discusses appeals to the Federal Court of Appeal and the Supreme Court of Canada, and outlines subsequent immigration procedures that unsuccessful refugee claimants may access before removal from Canada. A. Refugee Decisions at the Immigration and Refugee Board Canada s inland refugee determination system 1 which is expected to undergo significant revisions shortly 2 gives the IRB s Refugee Protection Division (RPD) responsibility for first-instance decisions. 3 Refugee claimants whose cases are eligible for referral to the RPD 4 are entitled 1. For an overview of the inland refugee determination process, see Martin Jones & Sasha Baglay, Refugee Law (Toronto: Irwin Law, 2007) at See Part IV.D, below, for more on this topic. 3. Immigration and Refugee Protection Act, SC 2001, c 27, ss , 170 [IRPA]. 4. Ibid, s 100. There are limited grounds for ineligibility, including having made a prior refugee claim in Canada, having travelled to Canada via a designated safe third country and having been found inadmissible due to security concerns, violations of human rights or certain types of criminality (ibid, s 101). S Rehaag 3

6 to hearings 5 before RPD Members, who are quasi-judicial administrative decision-makers appointed for fixed terms. 6 The purpose of the hearing is to determine whether claimants meet the definitions of convention refugees 7 or persons in need of protection, 8 and to determine whether claimants who are covered by these definitions are nonetheless excluded from refugee protection on grounds related to criminality or violation of human rights. 9 If the RPD Member denies the refugee claim, written reasons must be given after the hearing. Alternatively, if the RPD Member grants refugee protection, written reasons need only be given at the request of the claimant or the Minister of Citizenship and Immigration (the Minister). 10 In the case of a negative decision, the RPD Member may also declare the claim to have no credible basis if there was no credible or trustworthy evidence that could have justified granting refugee protection. 11 Such a declaration means that the claimant is not entitled to an automatic stay of a removal order pending the determination of any application for judicial review. Since 2002, Canada s immigration legislation has contained provisions allowing a claimant or the Minister to appeal an RPD decision on its merits to the Refugee Appeal Division (RAD) of the IRB, 12 but those provisions have not yet come into force. 13 The failure to implement the 5. Ibid, s 170(b). The RPD may grant, but not deny, refugee protection without holding a hearing (ibid, s 170(f)). As a matter of constitutional law, refugee claimants in Canada are entitled to a hearing whenever credibility is at stake. See Singh v Canada (Minister of Employment and Immigration), [1985] 1 SCR 177, 17 DLR (4th) IRPA, supra note 3, s 153. Only a small proportion of RPD Members have legal training (10% of the RPD s complement are required to be lawyers with at least 5 years of experience) (ibid, s 153(4)). 7. Ibid, s Ibid, s Ibid, s Ibid, s 169. Written reasons must also be provided when refugee protection is granted in cases where exclusion due to criminality or violating human rights is at issue. Refugee Protection Division Rules, SOR/ , r 61 [RPD Rules]. 11. IRPA, supra note 3, s Ibid, ss See ibid, s 275; Order Fixing June 28, 2002 as the Date of the Coming into Force of Certain Provisions of the Act, SI/ (2012) 38:1 Queen s LJ

7 RAD has been sharply criticized by refugee advocates, 14 and is especially problematic in light of studies indicating that refugee determinations at the RPD appear to turn at least in part on extra-legal considerations. 15 Of particular importance are studies showing massive and unexplained variations in refugee claim grant rates from one RPD Member to another, even when factors such as the claimant s country of origin are taken into account. 16 Because the RAD is not available, there is no recourse within the IRB when a claimant believes the RPD erred in a refugee determination, whether because of extra-legal factors such as the assignment of the case to an RPD Member who seldom or never grants refugee protection, See e.g. Amnesty International Canada, Canada s Refugee Appeal Division: Amnesty s Issues and Concerns (16 November 2007), online: Amnesty International < Canadian Council for Refugees, Refugee Appeal Division Backgrounder (December 2006), online: Canadian Council for Refugees < ca> [CCR, RAD ]. 15. Extra-legal factors may include whether the claimant had experienced legal counsel, the adjudicator s gender and the political party that appointed the adjudicator. See e.g. Sean Rehaag, The Role of Counsel in Canada s Refugee Determination System: An Empirical Assessment (2011) 49:1 Osgoode Hall LJ 71 [Rehaag, Counsel ]; Sean Rehaag, Do Women Refugee Judges Really Make a Difference? An Empirical Analysis of Gender and Outcomes in Canadian Refugee Determinations (2011) 23:2 CJWL 627 [Rehaag, Gender ]. 16. See Sean Rehaag, Troubling Patterns in Canadian Refugee Adjudication (2008) 39:2 Ottawa L Rev 335 [Rehaag, Troubling ]. For more recent data on variations in grant rates at the RPD, see Sean Rehaag, UPDATED 2011 Refugee Claim Data and IRB Member Recognition Rates (6 August 2012), online: Canadian Council for Refugees < ccrweb.ca> [Rehaag, Data ]. For media investigations of variations in refugee claim grant rates, see Marina Jiménez, Refugee approval rates vary widely, The Globe and Mail (24 July 2004) A1, online: The Globe and Mail < David McKie, Fluctuations in refugee rulings trouble critics, CBC News (17 December 2009), online: CBC News < 17. One RPD Member, David McBean, denied refugee status in every case he heard from the time he was appointed to the IRB in 2008 until See Nicholas Keung, Getting asylum the luck of the draw?, Toronto Star (4 March 2011) A1, online: Toronto Star < [Keung, "Luck"]. S Rehaag 5

8 or because of more run-of-the-mill errors that are inevitable in any administrative decision-making process. 18 B. Leave Decisions at the Federal Court Until the RAD is implemented, the only procedure available when a claimant (or the Minister) is unhappy with a first-instance RPD refugee determination is to apply for judicial review in the Federal Court. 19 Either party may begin the process of judicial review of an RPD decision by filing an application for leave with the Federal Court. 20 With a few exceptions such as where the RPD declares a claim to have no credible basis unsuccessful refugee claimants who apply for judicial review generally benefit from an automatic stay on removal, pending the determination of their application. 21 The timelines for applications for leave are tight: the application must be filed within 15 days after the RPD sends written reasons. 22 The respondent has ten days to indicate opposition to the application by filing a notice to appear. 23 The application must be perfected within 30 days by filing an application record, which includes the decision under review, a 18. While errors are inevitable in all administrative decision-making processes, several factors in the refugee determination process make them more likely. For example, refugee adjudicators must determine what is likely to happen in the future (that in the event that a refugee claimant is deported) in a foreign country frequently a country that is unstable and about which little reliable information is available. Moreover, the key evidence is typically found in the testimony of the claimant, who may suffer from mental health challenges related to surviving traumatic experiences and who often experiences stress as a result of the high stakes and unfamiliarity of the hearing process. In addition, testimony is generally mediated by an interpreter, and interpretation errors may occur. For a discussion of these and other challenges in refugee determination, see CCR, RAD, supra note For an overview of the judicial review process, see Jones & Baglay, supra note 1 at See also Federal Court, Judicial Review (Immigration) Practice Guide (May 2006), online: Federal Court < 20. IRPA, supra note 3, s Immigration and Refugee Protection Regulations, SOR/ , s 231 [IRPA Regulations]. 22. IRPA, supra note 3, ss 72, 169(f); Federal Courts Immigration and Refugee Protection Rules, SOR/93-22, s 5 [FC Immigration Rules]. Where there are special reasons, the Federal Court may extend the deadline, even after it has expired. IRPA, supra note 3, s 72(2)(c). 23. FC Immigration Rules, supra note 22, s 8. 6 (2012) 38:1 Queen s LJ

9 memorandum of argument and supporting affidavits. 24 If the respondent wants to oppose the application for leave, the respondent then has 30 days to file a memorandum of argument and supporting affidavits, 25 and the applicant may file a reply within ten days. 26 A single Federal Court judge (the leave judge) decides whether to grant leave in any given case. Applications are not screened before being assigned to a particular leave judge, so cases are effectively assigned at random. In other words, leave judges unlike RPD Members who make first-instance refugee determinations do not specialize in particular types of applications, or applications involving claimants from particular countries. 27 Hearings on leave determinations are only held in exceptional circumstances, 28 so a leave judge usually decides whether to grant leave solely on the basis of a review of the court file. Reasons for granting or denying leave are not typically provided. When leave is denied, there is no further appeal. 29 The test for when leave should be granted has not been established by legislation or the rules of the court. As Harrington J noted in Hinton v Canada (Minister of Employment and Immigration), [t]he parameters which should influence a judge s discretion are not set out. There is very 24. Ibid, s Ibid, s Ibid, s Jon B Gould, Colleen Sheppard & Johannes Wheeldon, A Refugee from Justice? Disparate Treatment in the Federal Court of Canada (2010) 32:4 Law & Pol y 454 at 459; Ian Greene & Paul Shaffer, Leave to Appeal and Leave to Commence Judicial Review in Canada s Refugee-Determination System: Is the Process Fair? (1992) 4:1 Int l J Refugee L 71 at IRPA, supra note 3, s 72(2)(d). 29. Ibid, s 72(2)(e). It should be noted that applicants may bring a motion for reconsideration where the denial of leave is inconsistent with reasons provided (if reasons were provided), or where a matter that should have been dealt with in denying leave was overlooked or accidentally omitted. See Federal Courts Rules, SOR/98-106, s 397. Courts have, however, generally interpreted the scope for reconsideration quite narrowly and it is, understandably, difficult to establish that the court overlooked or accidentally omitted considering a matter in denying leave when reasons are not typically provided. See e.g. Boateng v Canada (Minister of Employment and Immigration), [1990] 112 NR 318, 11 Imm LR (2d) 9 (FCA); Dan v Canada (Minister of Citizenship and Immigration), [2000] 189 FTR 301, 6 Imm LR (3d) 84 (see especially at para 17); Key v Canada (Minister of Citizenship and Immigration), 2011 FC 92, [2011] FCJ no 403 (QL). S Rehaag 7

10 little guiding jurisprudence, which is not surprising given that reasons are usually not provided and that the decision cannot be appealed. 30 Although there is not much jurisprudence in this area, a handful of decisions do discuss the leave requirement, usually in cases where the test for leave is ancillary to other legal issues. The leading case is Bains v Canada (Minister of Employment and Immigration), 31 where Mahoney J said, in rejecting a constitutional challenge to the leave requirement: The only question to be considered in disposing of an application for leave... is whether or not a fairly arguable case is disclosed for the relief proposed to be sought if leave were to be granted.... [T]he requirement for leave is in reality the other side of the coin of the traditional jurisdiction to summarily terminate proceedings that disclose no reasonably arguable case. 32 Similarly, in Saleh v Canada (Minister of Employment and Immigration), 33 Teitelbaum J offered this analysis of the test for leave: I am satisfied that on an application for leave one should grant such a request unless it is plain and obvious that the applicant would have no reasonable chance of succeeding. 34 More recently, in Canadian Council for Refugees v Canada, 35 Hughes J characterized the test for leave in these terms: the standard for granting an Order permitting judicial review is low. The matter at that point is to be dealt with in a summary way. The standard on a leave application is whether or not a fairly arguable case is disclosed. 36 In Level v Canada (Minister of Citizenship and Immigration), 37 Russell J noted that [w]hile the leave judge determines if there is a serious question to be tried, it is the judge on judicial review who has the opportunity to fully consider and weigh the merits of the application.... [O]n leave to commence an application, the merits of the parties arguments are not to be considered FC 1007 at para 15, [2008] 333 FTR (1990), 47 Admin LR 317, 109 NR 239 (FCA). 32. Ibid at paras 1, [1989] FCJ No 825 (QL) (TD). 34. Ibid FC 1046, 299 FTR Ibid at para 20. See also Sunarti v Canada (Minister of Citizenship and Immigration), 2011 FC 191 at para 14, 384 FTR FC 251, [2011] 3 FCR Ibid at para (2012) 38:1 Queen s LJ

11 And finally, in Mina v Canada (Minister of Citizenship and Immigration), 39 a rare case in which reasons were given for denying leave, Shore J said: In an application for leave and for judicial review, a serious, arguable case with serious issues must be submitted. 40 The test for leave has therefore been variably described in the following terms: a reasonably arguable case; a fairly arguable case; a serious question to be tried; and whether it is plain and obvious that the applicant has no reasonable prospect of success. However formulated, the test is highly permissive: leave should be granted unless it is clear that the judicial review application has no reasonable chance of success, namely, where it is so obvious that the application must fail that a determination on the merits is unnecessary. C. Judicial Review Decisions at the Federal Court In cases where leave is granted, a hearing will be scheduled between 30 and 90 days later. 41 The leave judge will also set timelines for filing further documents, including the tribunal record from the IRB, and further memoranda of argument from the parties. 42 A Federal Court judge (JR judge), other than the leave judge, presides over the hearing. The JR judge must determine whether the applicant has established that the RPD committed a reviewable and material error. The Federal Court can overturn an RPD decision where the RPD (1) acted outside or beyond its jurisdiction; (2) breached principles of natural justice or procedural fairness; (3) erred in law; (4) made findings of fact that were perverse or capricious, or were made without due regard to the available evidence; (5) acted as a result of fraud or perjury; or (6) acted contrary to law. 43 Judicial review is an administrative law process and is subject to Canadian administrative law norms, including norms on the level of deference courts must show administrative tribunals. The Federal Court is generally deferential toward findings of fact and of mixed fact and law FC 1182, [2010] FCJ no 1482 (QL). 40. Ibid at para IRPA, supra note 3, s 74(b). 42. FC Immigration Rules, supra note 22, r 15(1). 43. Federal Courts Act, RSC 1985, c F-7, s 18.1(4). S Rehaag 9

12 made by RPD Members. In reviewing such findings it applies a standard of reasonableness, 44 on which the question is not whether the JR judge would have made different findings but whether the findings that were made were reasonably open to the RPD Member and were adequately justified. As the Supreme Court put it in Dunsmuir v New Brunswick, 45 [a] court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 46 In immigration and refugee matters, the Federal Court applies the more exacting standard of correctness in some issues of law, including issues of jurisdiction and procedural fairness. 47 When using this standard of review, the JR judge essentially reconsiders the issue de novo and shows no deference to the RPD. 48 Where the JR judge is of the view that (on the appropriate standard of review) the RPD Member committed a reviewable and material error, the judge typically sets aside the RPD decision and orders that the matter be referred back for redetermination by a different RPD Member. The JR judge can, however, provide more specific directions to the RPD, including a direction that the claimant be accorded refugee protection. 49 The JR judge usually gives written reasons for the judgment, although orders can be issued without reasons. D. Appeals to the Federal Court of Appeal and the Supreme Court of Canada In cases where leave has been granted, the decision of the JR judge on the merits may be subject to appeal to the Federal Court of Appeal, but on tightly limited grounds. A party may appeal only if the JR judge issuing 44. Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 46, [2009] 1 SCR SCC 9, [2008] 1 SCR Ibid at para Khosa, supra note 44 at paras Dunsmuir, supra note 45 at para Federal Courts Act, supra note 43, s 18.1(3). 10 (2012) 38:1 Queen s LJ

13 the Federal Court decision certifies that the decision raises a serious question of general importance... and states the question. 50 Where a JR judge certifies a question and a party decides to proceed with an appeal, the Federal Court of Appeal is not limited to answering only the stated question but can reconsider all relevant issues. 51 In a case where the leave judge denies leave, or where leave is granted but the JR judge does not certify questions for appeal, the decision is final and cannot be appealed. 52 Where a question is certified for appeal by the JR judge and the case proceeds to the Federal Court of Appeal, a further appeal to the Supreme Court of Canada is possible, but only with leave from the Supreme Court. Such leave is given only in rare cases that raise issues of public importance. 53 E. Subsequent Immigration Procedures Aside from appeals, unsuccessful refugee claimants may access subsequent immigration procedures, including Humanitarian and Compassionate applications (H&C applications) and Pre-Removal Risk Assessments (PRRAs). An H&C application is a request that the Minister exercise discretion to make an exception from Canada s regular immigration requirements on humanitarian grounds on the grounds that the applicant would face unusual, undeserved or disproportionate hardship if required to leave Canada. 54 Usually the requested exception is that the applicant be given permanent residence in Canada, even though she does not qualify for any existing immigration program. While many unsuccessful refugee claimants make H&C applications, it should be noted that these applications do not provide refugees who allege that the RPD erroneously 50. IRPA, supra note 3, s 74(d). 51. Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 12, 174 DLR (4th) IRPA, supra note 3, ss 72(2)(e), 74(d). 53. Supreme Court Act, RSC 1985, c S-26, s Singh v Canada (Minister of Citizenship and Immigration), 2009 FC 11 at para 18, 340 FTR 29. See also IRPA, supra note 3, s 25.1; Citizenship and Immigration Canada, Operational Manuals, IP5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds (2011), online: Citizenship and Immigration Canada < S Rehaag 11

14 denied their claims with the opportunity to have their cases reassessed before they are removed from Canada. H&C applicants can be removed from the country pending determination of their applications. Moreover, since 2010, the Minister (when assessing an H&C application) has been prohibited from taking into account any risks to the claimant that could have been considered in the refugee determination process. 55 PRRAs represent a final opportunity, before removal from Canada, for applicants to demonstrate that they face risks of persecution, risks to life, risks of torture or risks of cruel and unusual treatment. 56 Once again, however, this procedure does not provide an opportunity to correct errors made by the RPD. Applicants who made refugee claims may only present evidence which arose after the refugee hearing or which the claimant could not reasonably have presented at the hearing. 57 As a result, for unsuccessful refugee claimants, PRRAs are generally of no use unless something happens between the hearing and the PRRA decision 58 to enable a claimant to meet the criteria for refugee status for example, if conditions in the claimant s country have deteriorated. Although immigration procedures are available, they do not provide individuals whose claims were erroneously denied by the RPD with a meaningful opportunity to show that they should not be deported from Canada to face persecution, torture or even death. As a result, the right of unsuccessful refugee claimants to access Federal Court judicial review of negative RPD determinations represents the sole opportunity for the Canadian legal system to catch mistakes in the refugee determination process IRPA, supra note 3, s 25(1.3). 56. Ibid, ss See also Citizenship and Immigration Canada, Operational Manuals, PP3: Pre-removal Risk Assessment (2009), online: Citizenship and Immigration Canada < 57. IRPA, supra note 3, s 113(a). 58. See e.g. Doumbouya v Canada (Minister of Citizenship and Immigration), 2007 FC 1187, [2007] FCJ no 1553 (QL) ( [t]he PRRA process is intended to assess new risk developments between the IRB hearing and the scheduled removal date at para 37). 59. Unsuccessful refugee claimants may turn to international human rights bodies once all domestic remedies are exhausted. However, the decisions of these bodies are not, in most cases, binding either as a matter of international or domestic law. Moreover, non-citizens are frequently deported while decisions of international human rights bodies are pending. See e.g. Ahani v Canada (Minister of Citizenship and Immigration) (2002), 58 OR (3d) 107, 208 DLR (4th) 66 (CA); Sogi v Canada (Minister of Citizenship and Immigration), 2006 FC 12 (2012) 38:1 Queen s LJ

15 Against this background, let us now turn to an assessment of how well the judicial review process for unsuccessful refugee claimants actually works. II. Existing Empirical Studies Several studies have offered empirical assessments of judicial review of refugee determinations in Canada. These studies are part of a growing body of empirical legal scholarship examining judicial decision making in Canada and elsewhere. 60 This wider scholarship demonstrates that outcomes in judicial processes may often turn on factors other than the merits of a case. Among the myriad of extra-legal factors that have been found to drive outcomes are the judge assigned to hear the case and the various aspects of that judge s identity such as gender, political party of appointment and political orientation. 61 Of course, some variability in the approaches of different judges is to be expected, as they bring a variety of life experiences to the bench. 62 Indeed, some of the strongest arguments for increasing the demographic diversity of the judiciary invoke benefits to the courts and the likelihood that they would at times come to different substantive conclusions if currently unrepresented life experiences and perspectives were brought 799, 158 ACWS (3d) 637; Dadar v Canada (Minister of Citizenship and Immigration), 2006 FC 382, 147 ACWS (3d) 277; Mugesera c Kenney, 2012 QCCS 116, 37 Admin LR (5th) For a review of empirical legal scholarship, see Michael Heise, An Empirical Analysis of Empirical Legal Scholarship Production, [2011:5] U Ill L Rev See also Peter Cane & Herbert M Kritzer, The Oxford Handbook of Empirical Legal Research (Oxford: Oxford University Press, 2010). 61. See e.g. James Stribopoulos & Moin A Yahya, Does a Judge s Party of Appointment or Gender Matter to Case Outcomes?: An Empirical Study of the Court of Appeal for Ontario (2007) 45:2 Osgoode Hall LJ 315; Benjamin Alarie & Andrew Green, Policy Preference Change and Appointments to the Supreme Court of Canada (2009) 47:1 Osgoode Hall LJ 1; CL Ostberg & Matthew E Wetstein, Attitudinal Decision Making in the Supreme Court of Canada (Vancouver: UBC Press, 2007); Donald R Songer, The Transformation of the Supreme Court of Canada: An Empirical Examination (Toronto: University of Toronto Press, 2008); Cass R Sunstein et al, Are Judges Political?: An Empirical Analysis of the Federal Judiciary (Washington, DC: Brookings Institution Press, 2006). 62. Roderick A Macdonald & FR Scott, Parametres of Politics in Judicial Appointments (Quebec: Commission of Inquiry into the Appointment Process for Judges in Quebec, 2010). S Rehaag 13

16 onto the bench. 63 Nonetheless, the rule of law may be undermined if extra-legal factors come to play a central role in determining judicial outcomes. 64 When one looks at judicial reviews of refugee determinations, the question therefore is not whether outcomes will vary with the judge who hears the case surely they will. Rather, the question is whether the degree of variability is within acceptable bounds, and if not, what can be done about it. 65 A. Greene As discussed below, the leave requirement for unsuccessful refugee claimants who seek judicial review first came into effect in 1989 amid significant controversy. 66 Soon afterwards, Ian Greene undertook an empirical study of how refugee claimants fared in Federal Court applications for leave. 67 In an article published in 1992 setting out preliminary results, Greene explained why the study was done: 63. See Justice Bertha Wilson, Will Women Judges Really Make a Difference? (1990) 28:1 Osgoode Hall LJ 507; The Honourable Sonia Sotomayor, A Latina Judge s Voice (2002) 13:1 La Raza LJ Consistency in judicial decision making is often described as a key feature of the rule of law. Lon Fuller, for example, argued that applying the law as announced, and deciding cases according to promulgated norms rather than on an ad hoc basis, are constitutive features of legality. The Morality of Law, revised ed (New Haven: Yale University Press, 1969). Many legal theorists from various traditions agree with Fuller on this point. See e.g. Ronald Dworkin, Philosophy, Morality, and Law Observations Prompted by Professor Fuller s Novel Claim ( ) 113:5 U Pa L Rev 668 at 669; Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, translated by William Rehg (Cambridge, Mass: MIT Press, 1996) at 144; HLA Hart, The Concept of Law, 2d ed (Oxford: Oxford University Press, 1994) at 207; John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at Several US scholars have offered a meticulous and comprehensive analysis of whether variability across judges is excessive in the American refugee determination system, and of measures that could be taken to reduce this variability. See e.g. Jaya Ramji-Nogales, Andrew I Schoenholtz & Philip G Schrag, Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform (New York: New York University Press, 2009). 66. See infra notes and accompanying text. 67. Greene & Shaffer, supra note 27. See also Ian Greene et al, Final Appeal: Decision- Making in Canadian Courts of Appeal (Toronto: James Lorimer & Company, 1998) at [Greene, Final Appeal ]. 14 (2012) 38:1 Queen s LJ

17 A uniform and just application of the law is particularly important in cases of refugee determination because of the severe human consequences which may result if the law is misapplied. Further, failure to ensure that the law is consistently applied may violate guarantees of fundamental justice in Section 7 of the Canadian Charter of Rights and Freedoms and the right to a fair hearing in accordance with the principles of fundamental justice under Section 2(e) of the Canadian Bill of Rights. 68 To test whether the new leave requirement posed barriers to a uniform and just application of the law in refugee determinations, the study reviewed court files in all applications for leave filed in 1990, leading to a dataset of applications. 69 It found statistically significant correlations at unusually high confidence levels between individual leave judges and leave outcomes. 70 In fact, the variations in leave grant rates from one judge to another were described as nothing short of astounding. 71 For example, while the average leave grant rate for all cases reviewed was 25%, 72 Pratte J granted leave in only 14% of his cases (203 decisions), and Desjardins J granted leave in 48% of hers (188 decisions). 73 Greene s analysis also showed that patterns in the assignment of cases to particular judges did not appear to account for those variations. 74 Nonetheless, to further test whether the caseloads assigned to individual judges differed in some relevant way, Greene retained an expert in immigration law to conduct a blind review of 390 randomly selected case files to independently assess whether, in that expert s view, leave should have been granted. 75 The purpose of this exercise was not to discern whether leave really ought to have been granted in each case, but whether the rates at which the expert would have granted leave varied for applications decided by different judges. It turned out that the 68. Greene & Shaffer, supra note 27 at Greene, Final Appeal, supra note 67 at In 1990, applications for leave were filed. However, data could not be collected on 260 cases (ibid at 220, n 47). 70. Greene & Shaffer, supra note 27 at Greene, Final Appeal, supra note 67 at Ibid at 220, n Ibid at Greene & Shaffer, supra note 27 at See also Greene, Final Appeal, supra note 67 at 19, n 44 and accompanying text. 75. The review was blind in the sense that the expert was not informed of the outcome in the application or the identity of the judge who decided it. See Greene, Final Appeal, supra note 67 at 220, n 45. S Rehaag 15

18 expert s leave grant rate was consistent across cases assigned to different leave judges. This further supported the conclusion that variations in leave grant rates across judges related to how individual judges decided the applications, rather than to patterns in the cases assigned to them. 76 On the basis of the findings, Greene said that [t]here is no escaping the conclusion that given the same law and the same kind of factual issues, some judges took a strict approach to granting leave... while others took a more liberal approach. 77 Where a judicial review application was heard and determined on the merits after leave had been granted, Greene went on to compare those final outcomes in cases where leave was granted by strict judges and by liberal judges, in an attempt to see whether the strict judges were better at screening out weak cases at the leave stage than the liberal judges. 78 Interestingly, however, no statistically significant correlation was found between rates of success on the merits (once leave was granted) and whether the leave judge had a high or low rate of granting leave. 79 This led the authors to conclude that refugee applicants who were unfortunate enough to have their leave applications come before a strict judge may have had less access to justice in the long run than those who were lucky enough to have their applications come before a more liberal judge. 80 Greene and Shaffer argued that the study conclusively demonstrated that the leave requirement, as it was applied in 1990, limited access by refugee claimants to an effective and fair appeal process, in a way that arguably violated constitutional norms of procedural justice. 81 One way to address this concern, they suggested, was the adoption of a practice common in many appellate courts of deciding cases by panels of several judges, to mitigate the effects of individual judicial predispositions. 82 Another suggestion was for the court to modify the leave process so that when one judge refused to grant leave, the matter would be automatically 76. Ibid at Ibid at Ibid at Ibid. 80. Ibid at Greene & Shaffer, supra note 27 at Ibid. 16 (2012) 38:1 Queen s LJ

19 reviewed by a second judge who could either confirm the decision or grant leave. 83 B. Gould, Sheppard and Wheeldon Jon Gould, Colleen Sheppard and Johannes Wheeldon updated the Greene study with new data from They examined a sample of 617 court files in applications filed in 2003 for leave and judicial review involving immigration decisions. 84 Because they were interested in examining both leave decisions and decisions on the merits where leave was granted, they oversampled cases where leave was granted to ensure a sufficiently large pool of cases decided on the merits. This led to two groups of cases: 275 applications where leave was denied, and 342 applications where leave was granted. Various data points were collected for each application, including outcomes and demographic details of applicants, judges and counsel. A panel of five immigration law experts was also consulted to assess the ideological reputation of the judges whose decisions were under consideration. 85 The study found that a variety of factors correlated with patterns in outcomes both at the leave stage and on the merits. These factors included the type of application (immigration applicant versus refugee applicant) 86 and the gender, age and country of origin of the applicant. 87 Applicants represented by lawyers were much more likely to be granted leave than 83. Greene, Final Appeal, supra note 67 at 221, n Supra note 27 at Ibid at Unlike the prior study, this study examined applications for judicial review involving both immigration law and refugee law. Many aspects of the process for judicial review are similar in these two contexts. For example, leave is required for both. See IRPA, supra note 3, s 72. However, there are also important differences. For instance, in many immigration law applications for judicial review, there is no automatic stay on removal pending the determination of judicial review, whereas most refugee applicants benefit from automatic stays of removal. See IRPA Regulations, supra note 21, s 231. Similarly, in many immigration law applications, constitutional due process norms are attenuated, whereas in refugee law applications, robust constitutional due process norms are almost always engaged. Compare Chiarelli v Canada (Minister of Employment and Immigration), [1992] 1 SCR 711, 90 DLR (4th) 289, with Singh, supra note Gould, Sheppard & Wheeldon, supra note 27 at S Rehaag 17

20 unrepresented applicants. 88 In the authors words, these findings... are troubling.... A system designed to provide due process of law ought not to be tilted in favor of those who can hire an experienced lawyer, and yet that is exactly what is happening. 89 The personal characteristics of judges were also found to be important factors. For example, at the leave stage, a judge s ideology had a significant, powerful effect... with liberal judges more likely than conservative judges to grant an applicant leave. 90 The same pattern was observed in decisions on the merits. 91 In addition, the authors found that: Francophone judges [were]... more skeptical of the merits of immigration appeals, even when controlling for the fact that they [were] more conservative than their Anglophone colleagues. 92 Gould, Sheppard and Wheeldon concluded that their findings reaffirmed the Greene study s central conclusion namely, that outcomes hinged at least in part on extra-legal factors, including which judge was assigned to decide an application. 93 This underscored concerns they suggested about how the Federal Court treated immigration and asylum cases and raised questions about the very legitimacy of Canada s immigration and refugee system. 94 C. Butler A more recent investigative report by journalist Don Butler echoes some of the findings of the Gould, Sheppard and Wheeldon study. 95 Butler reviewed 480 immigration, refugee and citizenship decisions issued by the Federal Court between January and June Cases were identified by searching reasons for decisions posted on the Federal Court s website for applications involving citizenship or immigration, and then by excluding decisions dealing only with procedural matters, such as costs 88. Ibid at Ibid at Ibid at Ibid. 92. Ibid at Ibid at Ibid at Don Butler, Would-be immigrants face uncertain justice, Ottawa Citizen (26 November 2011) A1, online: < 96. Ibid. 18 (2012) 38:1 Queen s LJ

21 awards. 97 Outcomes in the identified cases were then examined in light of which judge issued the decision, the judge s gender and political party of appointment, and whether the judge was from Quebec. 98 Butler reported that there were significant differences in rates at which different judges overturned immigration decisions. For example, Blanchard J overturned such decisions in 14% of the seven cases identified, whereas Campbell J overturned them in 100% of the 16 cases identified. More generally, according to Butler, outcomes appear to split on party lines, with judges appointed by Liberal Party prime ministers more likely to overturn immigration decisions than judges appointed by Progressive Conservative or Conservative party prime ministers. Male judges and judges from Quebec were less likely to grant judicial review than female judges and judges from the rest of Canada. 99 D. Need for a Further Study Because the Greene study examined all applications for leave in refugee cases filed in 1990, it provides compelling evidence that different judges were applying the leave requirement inconsistently. However, it is important to recall the context. The study examined leave decisions at a time when the leave requirement was a new and controversial procedure. It had only recently come into effect, and the criteria for granting leave had yet to be definitively established through case law. The strong association the study found between outcomes and judges could arguably be partly attributed to the novelty of the leave procedure. The Gould, Sheppard and Wheeldon study does suggest that such inconsistencies between judges persisted in 2003, long after the Federal Court had developed substantial experience with the leave requirement. That study also helpfully examines a variety of other factors that may affect outcomes especially claimant demographics and legal representation. At the same time, however, the study has some methodological limitations, most notably problems related to sample size and to the representativeness of the samples, given that cases granted leave were oversampled. Also, 97. from Don Butler, reporter, Ottawa Citizen, to author (13 February 2012) (on file with author). 98. Butler, supra note Ibid. S Rehaag 19

22 the methodology of assessing the ideology of judges using a panel of experts is questionable. Judges who, in the experience of the panel, have more frequently denied applications are likely to be viewed as more conservative by such a panel, so what is actually being measured is not ideology but the judge s past practice. Drawing conclusions about Francophone judges being more skeptical than their Anglophone counterparts is also problematic: how do we know, for example, whether these differences are attributable to the predilections of these two groups of judges or to patterns in the applications presented to the two groups? What if, for example, there is varying quality in terms of legal representation in Anglophone and Francophone communities perhaps as a result of differing provincial legal aid policies in Quebec and Ontario? Finally, the Butler study, while once again suggesting that variability across judges continues to be a concern, also has methodological limitations. Unlike the two earlier studies, Butler did not consult court files but examined online reasons for decisions. Because reasons are not typically provided for leave decisions, the study dealt only with decisions on the merits and even then, only when reasons for decisions were issued, which, as noted above, is not always the case. Also, Butler calculated grant rates for individual judges based on small datasets, so the representativeness of the sample is questionable. Moreover, he did not consider whether there may be systemic factors that account to some extent for the variations in grant rates for judges from Quebec and the rest of Canada. 100 III. The Present Study In my view, a new study was needed on whether, after more than two decades of judicial experience with the leave requirement, the troubling variability so compellingly established in the Greene study persists. To overcome some of the methodological limitations of the two more recent studies discussed above, the new study had to be based on a large dataset that covered all refugee applications filed over a significant period of time; had to track outcomes at both the leave and merits stages; and 100. In addition to these methodological limitations, there are concerns about the accuracy of some of the data in the study. For instance, Barnes J s political party of appointment was inaccurately reported, as was the number of cases he decided during the period of the study. 20 (2012) 38:1 Queen s LJ